Scotland's Constitutional Future: Are We in the Right Process?

The current process towards a referendum appears to contemplate a referendum campaign and referendum on independence, which if successful would trigger negotiations on independence, and the need for a new Scottish Constitution. Referendum first, constitution-making second. It appears to be largely assumed that Scotland’s constitutional future is largely settled by the label ‘independence’, when in fact some type of new constitution would need to be designed. While the referendum process has been the subject of much debate, the question of Scotland’s post-referendum constitutional process ‘after the fact’ has been much less discussed.

Interestingly, the key difficulty with fashioning a ‘third question’ in the referendum, dealing with some half-way or hybrid between independence and the status quo, is currently alleged to be the fact that this option lacks clear or comprehensive definition. Arguably, a part of the difficulty is that any such definition would require some sort of prior substantive and inclusive process focused on fashioning a constitutional status around substantive constitutional goods and powers, rather than choosing the status first, and finding the constitutional goods and powers to fit the status.

This seminar focuses on constitutional processes, attempting to locate Scotland’s current process with reference to models of constitutional change globally. We also use the seminar to ‘re-imagine’ a process in which form would follow substance, rather than substance being assumed to follow form. While both Scottish and UK government appear committed to the current process, this seminar asks: is there another way and what would it look like? This is not an exercise in wishful thinking. By asking the question of ‘is this the right process?’ we examine what the current independence referendum process enables in terms of constitutional change, but also what it disables.